Wheelon v. South Dakota Land Settlement Board

181 N.W. 359, 43 S.D. 551, 14 A.L.R. 1145, 1921 S.D. LEXIS 23

• Court: South Dakota Supreme Court
• Decided: January 28, 1921
• Docket: File No. 4827
• Status: Published

Opinion

GATES, J.

This is an original proceeding in this court in which is sought a writ of prohibition against the issuing of bonds to the amount of $250,000 by the South Dakota Land Settlement Board pursuant to the provisions of chapter 315, Laws 1919. The sole 'basis of the proceeding is the alleged unconstitutio-nality of that act. It having been made to- appear that bonds aggregating $200,000 had previously been sold to- a bank in Chicago, 111., notice of this proceeding was given to said bank, and an invitation given to appear or to have a brief filed as amicus curiae. Pursuant thereto Messrs. 'Wood & Oakley, attorneys of Chicago, 111., have filed brief as amici curiae.

[ 1 ] It is asserted by plaintiff that the title of said act violates section 21, art. 3, of our 'Constitution, which reads as follows:

“No lawt shall embrace more than one subject which shall be expressed in its title.”

Said title begins as follows:

“An act entitled, an act establishing and maintaining- by the state of South Dakota a Land 'Settlement Board and defining its powers and duties.”

[1] While the words “by the state of iSouth- Dakota” were superfluous, and the word “creating” might well have been substituted for the words “establishing and maintaining,” yet, if the title had stopped there, it would not have been obnoxious to the above constitutional provision. This court declared in State v. Morgan, 2 S. D. 32, 48 N. W. 314, that the title need not be an index of the contents of an act, and such suggestion has many times been reiterated by this court, but apparently to no effective purpose. The further clauses of the title in question are:

“Providing for the purchase and sale of real and personal property and the loaning of money by the state of South Dakota to settlers; authorizing the state of South Dakota to borrow money on its warrants and bonds secured fey the good faith and credit of the state for the purposes authorized by this act; providing for the management of said board and providing for an appropriation of on-e hundred thousand dollars to be used by the Land Settlement Board for the purposes authorized by this act and for the payment of salaries, expenses and equipment, and declaring an emergency.”

[2, 3,] These are all unnecessary, particularly the last clause “and declaring an emergency”; the last for the reason that the time at which an act is to go info effect is no part of the subject of the act. The question then recurs whether by the insertion of needless matter in the title it has become misleading. State ex rel. Gabel v. Young, 37 S. D. 196, 157 N. W. 325. The only possible ground of attack is, in our opinion, to be found in the word “settlers.” That word would indicate an intention to aid all persons who settle upon land in this state, while by the terms of the act war service persons are given the priority, and the benefits of the act may be extended to other persons only “when there are no> qualified soldier applicants.” In view of the principle that it is our duty to- construe this section of the Constitution liberally (Stephens v. Jones, 24 S. D. 97, 123 N. W. 705), and that it is only when “the conflict between the statute and Constitution is plain and manifest” that courts will be justified in declaring an act unconstitutional (State v. Morgan, supra; Queen City Fire Ins. Co. v. Basford, 27 S. D. 164, 130 N. AY. 44), we conclude that it does not dearly appear that a person examining the title would be misled thereby.

[4,5] The act is assailed because'it is claimed that the taxes levied for its purposes will not be levied for a public purpose, and therefore that the clause of Const, art. 11, § 2, will be violated which declares: “Taxes * * * shall be levied and collected for public purposes only.” It is argued that, in so far as the 'benefits of the act relate to war service persons, it is a personal gratuity or donation, and cannot be supported under the war and defense clauses of the Constitution. This contention is no longer an open question in this, state. The decision in State ex rel. Morris v. Handlin, 38 S. D. 550, 162 N. W. 379, forecloses such contention. See, also, State ex rel., Atwood v. Johnson, 170 Wis. 218, 175 N. W. 589, 7 A. L. R. 1617, and State ex rel. Atwood v. Johnson, 170 Wis. 251, 176 N. W. 224. It is further argued that, in so far as the act promotes land settlement, it deals with a private and not with a public purpose. Unlike the Hydro-electric Act, Laws 1919, c. 225 (In re Opinion of the Judges, 177 N. W. 812), and the State Cement Commission. Act, Laws 1919, c. 324 (In re Opinion of the Judges, 180 N. W. 957), the Land Settlement Act is not provided for by specific language of the Constitution. Is then the promlotion of land' settlement a public purpose? In his work “Helping Men Own Farms” Prof. Elwood Mead says on page 10:

“We are only just beginning to realize that our future is likely to be determined primarily by the relation of the people to the land. The chaos of Russia has grown out land hunger; no one fears for the safety of France where nearly half of the people are landowners. We have often stated, but little heeded, the facts that we are ceasing to be a land-owning nation, and that the land-bom are drifting to the cities. We have yet to learn what the older countries of the world already know — that keeping people on the land in the years to come must be one of the main endeavors of civilzed nations. People cannot be kept on the land where nonresident ownership and tenantry prevail. Nothing short of ownership of the land one toils over will suffice to overcome the lure of the city. At any sacrifice, at any cost, the people .who farm the land must be enabled to own it. On. such ownership the life of a modern nation may depend.”

The writer well remembers that Dir. Joseph Cook in his “Boston Monday lectures” of about 40 years ago gave frequent and timely warning of the danger to the country of the influx of the people from the farms to the cities, and he often reiterated the statement that then nearly two-fifths of the population of this country resided in, cities. By the census announcement made a few days since it appears that now more than 51 per cent, of the population reside in cities of 2,500 or more population. Surely this tendency must be counteracted if this country is to continue to exist upon the foundations laid by our forefathers.

In Green v. Frazier (N. D.) 176 N. W. 11, 18, Mr. Justice Grace, speaking for the court of our sister state, said:

“The principal source of the production of wealth of North Dakota is agriculture. It is a conservative estimate that 90 per cent, of the wealth produced by the state is from agriculture. It is the foundation of the state’s prosperity and welfare, and upon it, as such, rests all other business of the state. The mercantile pursuits, the banking interests, and every business pursuit within the state depends directly for its success upon the wealth produced by the farmers of this state. The wealth produced by the farmers of this state is the lifeblood of the business interest of the state; hence the conservation and securing of the wealth produced by the farmers to them is of vital interest not only to the farmers, but to every one who is engaged in the carrying on of business in the state.”

With the exception of the mining industry in the Black Hills, the like statement might be made as to South 'Dakota. South Dakota has about 49 million acres of land, and it is authoritatively stated that less than 17 million acres are under cultivation.

Dr. Richard T. Ely, in “Private •Colonization of Hand,” p. 20, says:

“The state, county, and town have an interest at stake where the farms are scattered. 'All public improvements in such cases involve excessive costs if these improvements are to be satisfactory. This applies to. roads, telephones, schools, and so' forth. 'Society loses because the individuals comlposing it are hot so prosperous as they could be. Educational facilities and other advantages of organized society are less than they would be if there were closer settlement.”

Upon this subject the Washington court said in State ex rel. State Reclamation Board v. Clausen (Wash.) 188 Pac. 538:

“Our problem, then, is reduced to this: Is the raising of funds by taxation and the expenditure thereof for the purchase of land to the end that it be subdivided, improved, and disposed of as by the terms of this act provided the exercise of the power of taxation and the expenditure of public funds, for a public purpose? It may well be doubted that there has ever come to the American courts any more vexatious question than that of determining whether or not a particular purpose for which public funds were sought to be raised by taxation and expended is a public purpose, when the particular purpose in question lay within that twilight zone wherein the minds may reasonably differ as to such purpose being a public one; the bounds of which zone are ever changing with the passing of time, and within which new problems of public welfare always first appear. That such a question when arising in the courts has proven so vexatious is, we apprehend, because of its inherent nature, in that, in its last: analysis it is not one of exclusive legal logic, but is one more or less of policy and wisdom, properly determinable in the light of public welfare, present and future, in a broad sense, and hence is not a pure judicial law question-, except in those cases clearly outside of the twilight zone we have alluded to.”

That court also quoted with approval the following from Sun Printing & Pub. Ass’n. v. City of New York, 8 App. Div. 230, 40 N. Y. Supp. 607:

“Where, then, shall we draw the line? It would be very simple to draw it at those purposes for which precedent in the past can be found, and to* exclude all others. This test should be easy of application, but would be essentially vicious and erroneous. Growth and extension are as necessary in the domain of municipal action as in the domain of law.”

The Washington court also quoted extensively from Perry v. Keene, 56 N. H. 514, the last paragraph of which is as follows:

“After the Legislature and the executive have both decided that the purpose for which a tax is laid is public, nothing short of a moral certainty that a mistake has been' made can, in my judgment, warrant the court in- overruling that decision, especially when nothing better can be set up in its place than the naked opinion of the court as to the character of the use proposed.”

The Washington court also quoted the following pertinent observations from Laughlin v. City of Portland, in Me. 486, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734;

“The courts have never attempted to lay down with minute detail an inexorable rule distinguishing public from private purposes, because it would be impossible to do so. Times change. The wants and necessities of the people- change. The opportunity to satisfy those wants and necessities by individual effort may vary. What was clearly a public use a century- ago may, because of changed! conditions, have ceased to be such to-day. Thus the mill' act which came into being in the early days of our parent commonwealth of Massachusetts, and was adopted by our own state, was upheld as constitutional because of the necessities of those primitive times.' The courts in later days'have strongly intimated that were it an original question it might be difficult to sustain it in view of the present industrial conditions. Murdock v. Stickney, 8 Cush. (Mass.) 113; Salisbury v. Forsaith, 57 N. H. 124; Jordan v. Woodward, 40 Me. 317. On the other hand, what could not be deemed a public use a century ago' may, because of changed economic and industrial conditions, be such today. Laws which were entirely adequate to secure public welfare then may be inadequate to accomplish the same result now.”

The Washington court then said:

“Is there not abundant room for arguing that the development of our unoccupied lands suitable for agriculture, by a land policy which would encourage the settlement thereon of home-owning farmers, will materially contribute to the welfare of our people as a whole? Can it not be argued with a fair show of reason that, not only will such a policy ultimately lead to the enhancement of the material wealth of the state, but that it will also make for better citizenship, better notions of necessity for law and order, and a sounder and saner patriotism?”

We unhesitatingly coincide with the views of the legislature and executive departments of this state that the purposes of chapter 315, Laws 1919, are public purposes.

[6, 7] It is urged that there is no constitutional authority for the state to engage in the business specified in the act. There need be no-express constitutional authority therefor. The legislation would be lawful if not prohibited by the Constitution. Platt v. Lecoq (C. C.) 150 Fed. 391; Ohlwine v. Bushnell, 32 S. D. 426, 143 N. W. 362. But we do find express authority in Const. art. 13, § 1, as amended in 1918, which provides:

“For the purpose of developing the resources and improving the economic facilities of South Dakota, the state may engage in works of internal improvement, may own and conduct proper business enterprises.”

Whether or not the work contemplated by the act is strictly a work of'internal improvement we do not need to determine, because it clearly is a business enterprise which will tend to the development of the resources of the state. That does not admit of argument. . .

[8] It is contnded that Const. Art. 6, § 18, is violated in that war service persons are given special privileges and immunities by the act. If the act were limited to war service persons it would not violate that section of the Constitution. State ex rel. Morris v. Handlin, 38 S. D. 550, 162 N. W. 379. Still less does it violate that section when it gives “other persons” the same rights when there are no “soldier applicants.” The same reasons also refute appellant’s claim that the equal protection of the law clause in Amendment 14 of the federal Constitution will be violated by this act.

[9] It is urged that the provisions of the act which authorize the creation of debt and the levy of taxes to- meet such debt amiount to a deprivation of property without due process of law within the meaning of 'Const, art. 6, § 2. 12 Corp. Jur. 1255, says:

“It is well settled that the taking of property under the power of taxation, properly exercised, 'does not constitute a taking without due process of law.”

[10] It is next urged that Const, art. 6, § 13, will be violated in that plaintiff’s property will be taken without just compensation by the levying of taxes in support of that act. This section relates to the exercise of the power of eminent domain, not to the power of taxation.

[ 11 ] It is insisted that the operation of the act will result in unequal and nonuniform taxation in violation of Const, art. 6, §17. It is sufficient to state that the last clause of said section, “and all taxation shall be equal and uniform,” has been obliterated from the 'Constitution by the adoption of amended article 11, § 2, in November, 1918.

[12] It is next urged that the proposed indebtedness authorized by the act will exceed the limit of $100,000 prescribed by Const, art. 13, § 2. By the specific terms of C'onst. art 13, § 1, the above $100,000 debt limit does not apply to indebtedness incurred under the provisions of said section 1. The facts admitted in this proceeding show that the indebtedness incurred under this section (other than for rural credits as to which there is no limit) and to be incurred by the proposed bond issue of $250,000 will be well -within the limit of one-half of 1 per cent, of the assessed valuation, of taxable property in this state.

[13] Finally it is urged that Const. Art. 6, § 14, is violated in that a distinction is made in the act between resident aliens and citizens in reference to the possession, enjoyment, or descent of property. The act is primarily for the benefit of honorably discharged soldiers, sailors, marines, and other persons who have served wtih the armed forces of the United States in the late war or other wars. ¡Secondarily the act is for the benefit of “other persons.” So far no distinction is made between resident aliens and citizens. Former American citizens who served in the Allied armies are included in the priority class if they have been reliatriated, but if they have not been repatriated, they may still come within the operation of the act as “other persons” after the list of “soldier applicants” has been exhausted. The objection does not go- to the constitutionality of the act, but to the constittutionality of the restriction against returned war service persons who served in the Allied armies, and who have not been repatriated. Such restriction being separable from the other provisions of -the act, there will be no necessity of determining that question until one of such persons raises it. Pugh v. Pugh, 25 S. D. 7, 124 N. W. 959, 32 L. R. A. (N. S.) 954; State v. Kirby, 34 S. D. 281, 148 N. W. 533.

We find no provision of the Constitution that is or will be violated by chapter 315, Laws 1919, unless it be the one last mentioned.

The application for the writ of prohibition is therefore dismissed upon its merits.